Muzamin vs Sh. Ranjit Singh and Others

Pradeep Nandrajog, J.—The two captioned appeals arise out of the same accident which took place on 8.10.1995. The captioned appeals

are filed by the owner and driver respectively of the offending vehicle. The appellant in both the appeals prays that they should be absolved of their

liability to satisfy the award.

On 8.10.1995, deceased Ravinder Singh aged 28 years died in a road accident stated to be caused by the rash or negligent driving of the driver

of truck bearing No. HR-29-8954. He left behind a wife, a minor child and parents.

After discussing the evidence on record pertaining to the accident and holding the driver of the offending vehicle, guilty of rash and negligent

driving, learned Tribunal awarded compensation in sum of Rs. 5,32,000/- to the claimants. Since it was not proved that the offending vehicle was

insured at the time of the accident, the owner and the driver of the offending vehicle have been held liable to pay under the award.

Vide MAC.APP. No. 62/2004, owner of the offending vehicle has challenged the award in so far it determines that accident in question was

caused due to rash or negligent driving of the driver of the offending vehicle.

Vide MAC.APP. No. 76/2004, driver of the offending vehicle has challenged the award on same grounds as are urged by the owner of the

vehicle.

Since the issue involved in both the appeals is same, I shall deal with both the appeals in light of the evidence on record pertaining to the

accident.

Reverting to the claim petition, I note that the case of the claimants before the Tribunal was that on 8.10.1995 when deceased was going on his

two wheeler scooter, he was hit by the truck bearing No. HR-29-8954 which was being reversed by the driver namely, Muzamin in a rash and

negligent manner. It was stated that nobody was assisting the driver when he was reversing the truck.

To establish the manner in which the accident took place, claimants examined Gyan Singh and Manish Kapur who were stated to be eye

witnesses of the accident in question.

On behalf of driver and owner of the truck, reliance was sought to be placed on testimonies of above aforenoted witnesses in the criminal case

in FIR No. 595/1995. It was contended that there were contradictions between the testimonies before the MACT and those before the Criminal

Court and thus Tribunal ought not to rely upon testimonies of these witnesses in order to determine the manner in which the accident took place.

Tribunal rejected the contention of the owner and driver of the truck and on the basis of the testimonies of Gian Singh, PW-3 and Manish,

PW-4 as also site plan of the accident, Ex.PW1/5 held that accident in question was caused solely due to the rash or negligent driving of the driver

of the truck.

Aggrieved by this finding of the Tribunal, owner and driver of the truck have filed the present appeal.

The first ground raised by the learned Counsel for the appellants is that Tribunal erred in ignoring the contradictions between the testimonies

before the Tribunal and those before the Criminal Court and thereby holding that the accident in question was caused due to the rash or negligent

driving of the driver of the truck. Second ground urged is that Tribunal erred in holding that truck was positioned in the middle of the road at the

time of the accident.

To appreciate the first ground urged by the learned Counsel for the appellants, it is important to note the testimonies of aforenoted witnesses.

Relevant part of the testimony of Gyan Singh, PW-3 reads as under:

On 8.10.1995 at about 12.00 noon, I went to market at Om Dharam Kanta, at Sanjay Nagar, Samaipur Badli to purchase a pipe piece. Then I

saw a truck which was reversing without any helper and at a high speed and stuck the scooterist which was coming from the side of Nahar and

was going towards Samaipur. The scooterist fell down on the road and he sustained fatal head injuries. The truck number was HR-29-A-8954. I

took the injured to Hindu Rao hospital in a three wheeler scooter. When we reached the hospital the doctors brought the injured brought dead.

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The name of the scooterist was later on I came to know as Ravinder who was aged about 23-24 years. The accident took place due to the rash

and negligent driving of the truck driver who reversed his vehicle without any helper abruptly.

However, Gian Singh, PW-3 in his cross-examination deposed as under:

I did not see the cause of the accident as I saw after the deceased had fell down after the accident.

Since aforenoted deposition of Gian Singh establishes that he was not an eyewitnesses to the accident in question, Therefore, his testimony

before the Criminal Court becomes irrelevant.

Relevant part of the testimony of Manish, PW-4, before the Tribunal reads as under:

In the month of the Oct. 95 I was present at my shop of spare parts at about 12.00 noon I went on my scooter towards bawana Road Samaipur

Badli. to purchase some spare parts from the market which is Dharmkata. Ravider Singh, Deceased, has also gone in the same direction about 10

minutes prior to me to take a test drive. After purchasing the spare parts from the shop, as I was walking towards my scooter I saw Sh. Ravinder

Singh coming from the front and the truck suddenly reversed from the Dharam kata without any helper and hit into the scooter being driven by

Ravinder Singh. I immediately rushed to the spot but the driver ran away by then. Shri Ravinder Singh had suffered serious head injuries and was

bleeding profusely. I rushed to Shane Punjab Dhaba on my scooter and brought Shri Gyan Singh from there and together we took Ravinder Singh

to Hindu Rao Hospital in a three wheeler scooter. When we reached the hospital, the doctor declared Ravinder Singh dead.

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I was 14 years old in the year 1995. I was studying as well as working at that time. The shop of spare parts and mechanical work was owned by

Shri Ravinder Singh.

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I do not have any documentary proof to show that I was working in the shop of the deceased.

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No statement of mine was recorded by the doctor of the police in the hospital.

Relevant part of testimony of Manish before Criminal Court, Ex.RW1/3, reads as under:

On 8.10.95 at 12 noon my brother-in-law Sr.Ravinder Singh went to take try of a two wheeler scooter No. DAA 9006 and I was on shop of my

jeeja and when my jeeja was coming after taking try from side of nahar. And in the way a truck No. HR 29 8954 was being driven back from Shiv

Dharam Kanta, and there was no helper/ conductor behind the truck to gave any signal. The aforesaid truck hit the scooter from back and my

jeeja fell down from the scooter. Meanwhile the driver of the truck came down and saw my jeeja falling down and thereafter driver tried to run

away from there but mean while I also reached there and other persons tried to apprehend the driver but he did not stop and run away by saying

that he would made telephone call to the owner of the truck. Thereafter I took my jeeja in TSR with the help of Gian chand and then we took to

HRH. Where the doctor declared my jeeja dead.

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My statement was also recorded by the IO and thereafter I along with Gian Chand went to the PS to make enquiry about one case where the

truck which caused accident was also standing in the PS.

According to the learned Counsel for the appellant, there are following contradictions between testimony of Manish before Tribunal and that

before Criminal Court:

Before the Tribunal, Manish deposed that deceased that he was employed with deceased while before the Criminal Court, he deposed that

deceased was his Jeeja.

Before the Tribunal, Manish deposed that before he reached the spot of accident, the driver of the truck had already run away while before the

Criminal Court, he deposed that he tried to apprehend the driver.

Before the Tribunal, Manish deposed that his statement was not recorded by the police while before the Criminal Court, he deposed that his

statement was recorded by I.O.

The aforenoted consistencies as pointed out by learned Counsel for the appellants are minor in nature. It is relevant to note that there is no

inconsistency in his depositions pertaining to manner in which the accident took place.

Even otherwise, testimony of Manish in Criminal Court was recorded on 5.8.1998. His testimony before the Tribunal was recorded on

17.10.2003.

In order to rely on aforenoted alleged contradictions, it was necessary that Manish should have been confronted with his statement as recorded

in the Criminal Case and opportunity had to be granted to the witness to explain the contradiction before the same could have been read against

him. The driver in his testimony as RW-1 merely referred to the testimony of Manish before the criminal court. In the trial before MACT, Manish,

PW-4, was never confronted with his statements made before the criminal court.

Motor Vehicles Act is a beneficial Act intended to provide monetary solace to dependents of the victims of the road accident. Burden of proof

as envisaged under Motor Vehicle Act is liberal.

The testimony of Manish, PW-4 clearly establishes that accident in question was caused due to rash or negligent driving of the driver of the

truck bearing No. HR-29-8954.

Noting the site plan, Ex.PW1/5, Tribunal in para 19 has observed as under:

The witness has described the manner in which the accident took place. Even, if, we ignore the testimony of PW3 and 4, then too in the

present case, the circumstances itself speak of the negligence on the part of the driver of the truck. The certified copy of the site plan as prepared

in the criminal case, has been placed on record, which is Ex.PW1/5. It has been indicated that the trailer was found standing in the middle of the

road and the scooter had been going on the road perpendicular to the road on which the trailer was standing. The position of the vehicles itself

corroborate the case of the witnesses that the scooterist was going on the Samaipur Badli road, and was hit by the truck while it was being

reversed without taking due care and caution.

According to the learned Counsel for the appellants, Tribunal erred in holding that truck was found standing in the middle of the road.

I agree with the learned Counsel for the appellants inasmuch as Tribunal has mis-appreciated the site plan Ex.PW1/5. In the site plan,

Dharamkata (weigh bridge) is shown as a road and Tribunal without realizing that it was not a road but Dharamkata has held that truck was found

standing in the middle of the road.

However, this error committed by the Tribunal does not help the case of the appellants. The said site plan shows that the truck was reversing

out from Dharamkata. It''s rear is protruding on the road. This corroborates the testimony of Manish, PW-4 who had deposed that accident in

question was caused when the driver reversed the truck from the Dharamkata, and was not being guided.

In view of my above discussion, MAC.APP. No. 62/2004 and MAC.APP. No. 76/2004 are dismissed.

No costs.